Are you facing a legal issue?  Have you been sued, or are you wondering about foreclosure?  Did you just have a medical procedure that didn’t turn out as you expected?  Is bankruptcy looming?  What about your family life – are you and your spouse considering divorce?  Do you need to update your will?  Has someone you love been arrested for a DUI? 

These are examples of only some of the most common legal issues.  The fact is we actually deal with the law more than most people think.  More importantly, when we face a legal issue, many of us might not know where to turn for answers.  The legal system can certainly be overwhelming – especially because the consequences are often so grave. 

Since 1994, LawInfo has been providing the public with quality legal resources they can count on.  The idea for the company even came out of the founder’s own legal needs!  How do you find the right attorney?  How do you know the attorneys you contact are in good standing with the state bar association?  What if you want to learn about a legal issue before you talk to a lawyer?  Well, these are the reasons LawInfo was established!  LawInfo has a whole library of information about the most common legal issues including answers to frequently asked questions, articles, legal guides, legal forms, and other information – ALL FREE TO THE PUBLIC!  The really great thing is this – you can also easily find an attorney who will understand your legal needs.  It’s all designed to help the public – help someone find answers they need and find an attorney who can help them. 

Learn more about LawInfo’s Free Legal Resource Center and Find the Right Attorney in your area today!

As evidenced by the furor generated in New York City and nationally regarding the Imette St. Guillen rape and murder case, the focus of criminal and civil culpability will invariably move from the prime suspect to the establishment where he worked and where the victim apparently spent her last hours. Many victims’ rights advocates are openly questioning the hiring practices or lack thereof at “The Falls” who apparently hired the chief suspect, Darryl Littlejohn, as a bouncer, without conducting background check which would have revealed a substantial criminal background.

Whatever the disposition of the criminal matter, employers should pay heed to the potential civil liability that “The Falls” may very well be exposed to. While in a criminal case, the prosecution must prove it’s charges to a jury beyond a reasonable doubt, the burden of proof in Florida and most jurisdictions on a civil matter is by a preponderance of the evidence. What that means in plain English is that all a civil plaintiff need prove is that it is more likely than not that the defendant was negligent and whose negligence caused the resulting damages.

In the St. Guillen case, her family could very well file a wrongful death case against The Falls claiming that their failure to do a criminal background check with regard to Mr. LittleJohn, resulted in their daughter, who was an apparent patron of the bar, and to whom the bar owed a duty to take all reasonable precautions to keep her safe from any known dangers or dangers that could be discovered upon reasonable investigation, being needlessly placed in a zone of danger. Again, but for a simple background check, the argument will go that Imette St. Guillen, a young, bright woman would in all likelihood have never encountered her killer on the night in question and it was the negligence of The Falls by opening it’s door of employm ent to a known felon, literally let a wolf loose on unsuspecting innocent souls who were at their establishment to have a drink, socialize and were unaware that danger was lurking in their midst.

The Guillen family could very well ask a court for a substantial amount of damages and might even be awarded punitive damages for the egregious negligence and carelessness of the bar. The lesson to all employers is clear, you have a duty to protect your customers, patrons a nd visitors to your places of business. They have a reasonable expectation of safety while on your premises. The failure to recognize this will sadly only lead to future tragedies like this one and potential financial catastrophe for the employers in question. Depending on the jurisdiction and make up of potential jury substantial money damages might be awarded in negligence cases such as these. Place close attention to the Guillen case as it unfolds and remember it’s outcome. The final verdict will be more a statement of what duty of care and responsibility we as a society expect from business owners than the fate of Ms. Guillen’s killer.

This case is a strong reminder of a case we handled several years ago where we represented the parents of a sixteen year old boy who had run afoul of the law and who had been placed in a youth shelter by the courts. The shelter failed to conduct criminal background on it’s counselors which would have uncovered convictions for sexual assault and battery. The child was subsequently severely beaten and assaulted repeatedly, slipped into coma, and was rushed to the hospital by paramedics, where he later died of his injuries. We filed a wrongful death lawsuit on behalf of the parents, demanding obvious substantial damages claiming that the negligence of the shelter in failing to screen it’s employees backgrounds was the direct and proximate cause of the death of their son. The shelter agreed to settle this matter at a court ordered mediation for $3,000,000.00 on the eve of trial.

Unfortunately, it has simply become far too easy for employees to sue their employers in today’s overly litigious society. It is even more unfortunate that many employers do not realize until after they are sued that a lawsuit could have been prevented, or at least their defenses to a lawsuit strengthened, by simple “preventative maintenance” regarding their employment policies and practices.

A recent case illustrates this point. The case involved five employees who worked alone with their branch supervisor in a remote office. In their lawsuit, the employees alleged that the supervisor sexually and racially harassed them on a daily basis, and that they did not know how or to whom to complain regarding his conduct. When they finally did complain to the corporate headquarters, the company investigated their complaints and terminated the supervisor, who claimed (falsely) that he had never received any harassment training and therefore did not know that his conduct violated company policy. A few months after the employees’ complaint, the office was closed and all five employees were terminated, rather than transferred, for performance-related reasons. The employees claimed that they were terminated in retaliation for complaining about the supervisor.

Although the case was settled shortly before trial, it was largely the employer’s own mistakes, long before the suit was filed, that gave the employees a basis for their claims and prevented an early dismissal of the case. For example, although the company had, in fact, trained both the employees and the supervisor on its policy against unlawful harassment and its internal complaint procedures, it did not have sufficient documentation to prove it. Similarly, the company had failed to adequately document the employees’ performance problems, which seriously hampered its ability to prove that their terminations were performance-related, rather than retaliatory.

Regrettably, these self-inflicted wounds are rather common for employers, regardless of the size of their workforce. Fortunately, there are five simple steps that employers can take to prevent these and other problems quite easily. These steps will help to both avoid employee lawsuits and make it easier for a company to prevail if a lawsuit is filed.

1. Implement And Maintain An Effective Unlawful Discrimination And Harassment Policy.

Although many employers already have a sexual harassment policy in place, companies will often omit other forms of unlawful harassment, such as harassment based on race, religion, age or disability, from their policy. Such policies will also often fail to address protections against retaliation (as in the case described above) or discrimination. Given the paternalistic view of the employer-employee relationship held by most courts, arbitrators and civil rights agencies (many of which too frequently relieve an employee of his common sense obligations), an effective unlawful discrimination and harassment policy should address all forms of prohibited discriminatory and harassing conduct, by both description and example. The policy should also set forth a complaint procedure that affirmatively requires all employees to immediately complain about any unlawful conduct that they witness or to which they are subjected. Additionally, the policy should reassure employees that their complaints will be kept confidential to the maximum extent possible and that the company will not retaliate (or allow retaliation) against them for complaining. Lastly, the policy should clearly set forth the severe consequences of engaging in unlawful conduct in the workplace, including termination.

In addition to providing a mechanism whereby claims of harassment and discrimination can be promptly and effectively addressed before a lawsuit is filed, an effective unlawful discrimination and harassment policy will in many cases also provide an employer with a strong affirmative defense to the claims of an employee who failed to take advantage of the policy and its complaint procedure before filing suit. This is because an employee may be precluded from litigating (or at least recovering damages on) a claim if her employer could have internally addressed and resolved it had the employee complained. In short, an effective policy can both prevent employee lawsuits and provide a compelling basis for their dismissal before trial.

2. Ensure That All Employees And Management Are Aware Of The Policy.

Obviously, the full benefit of having an effective unlawful discrimination and harassment policy cannot be realized unless the policy is communicated to the employees. In the case described above, although the company distributed the policy to the employees when they were first hired, there was no proof that the employees had ever seen the policy again. This was particularly problematic because a few of the employees had started their employment years before the alleged harassment occurred.

To overcome this problem, employers should have their policies prominently posted in the workplace and should distribute them to all employees (including management) at least once per year. If an employer has an employee handbook, the policy should be included in it as well.

In addition to distributing the policy, employers should also train the employees, at least annually, on the conduct prohibited by the policy and on how to report violations. Simply giving them a copy of the policy to review may not be enough. An effective training program ensures that all employees and supervisors are aware of the policy, and demonstrates how seriously the company takes its assurances of a non-discriminatory working environment.

3. Document, Document, Document.

The importance of documentation and record keeping cannot be stressed enough, because once a lawsuit is filed, if the employer cannot prove something, it never happened. Indeed, one of the first things that a judge, juror, arbitrator, EEOC investigator or opposing counsel wants to know is, “do you have that in writing?” In the above case, the company knew that the supervisor had, in fact, been trained on its sexual harassment policy, but had no document to prove it. As a result, it was easy for the supervisor to deny knowing that his conduct violated the policy. This seriously weakened the strength of the policy. It also exposed the company to claims of negligence for allegedly failing to train the supervisor regarding prohibited conduct.

With regard to the distribution of an unlawful discrimination and harassment policy, every employer should have documentation that each employee received, reviewed and was trained on the policy. This is accomplished easily enough by requiring employees to sign and date a copy of the policy beneath an acknowledgment that they have received it, reviewed it and were trained on it. The supervisor or Human Resources representative who reviews the policy with them also should indicate, below the employees’ signatures, that he or she has done so. Employers should also maintain documentation of each training session held with the employees, by virtue of an attendance list or an acknowledgement form signed and dated by each employee.

Performance issues need to be documented as well, regardless of whether the only discipline given is a verbal warning or counseling. This is because it is harder to prove that an incident occurred or that an employee was warned or otherwise disciplined if it was never documented. Such documentation should include a brief description of the incident, a summary of the communication with the employee regarding the discipline (including the nature of the discipline), and the dates of the incident and discipline. Documentation of the discipline or performance issue also should be given to and signed by the employee. If the employee refuses to sign it, the fact that he has done so should be noted on the document.

Each of these records should be maintained in the employee’s official personnel file, regardless of whether a separate file is maintained by the employee’s supervisor. This helps to insure that important documentation is not lost or misplaced.

4. Be Honest When Evaluating Employee Performance.

In addition to documenting specific rule or policy violations, employers should also document and notify their employees of less tangible performance problems, such as by accurately recording such issues on written performance evaluations. All too often, direct supervisors will “sugar-coat” their criticisms of subordinates’ performance (or sometimes not address them at all) in order to avoid conflicts in the working relationship. While this may ease daily interactions with the employee, such conduct does far more harm than good.

The most obvious effect of not honestly addressing performance issues is that they become more difficult to resolve and take longer to resolve when they are not confronted directly. Depending on the extent of the problem, the failure to quickly and effectively address an issue may also negatively impact other areas of the business. Thus, soft-pedaling employee criticisms may detrimentally affect more than just that employee’s future performance with the company.

From a litigation standpoint, letting a performance issue fester until formal discipline is needed gives an employee grounds to claim that the employer fabricated the reason for the discipline or termination to conceal an allegedly unlawful motivation, such as discrimination or retaliation. Although performance issues should not be presented to employees in a rude, unprofessional or overly negative manner, honestly assessing performance issues with them will prevent claims of surprise and fabrication after a lawsuit is filed, and may even make employees think twice before threatening suit.

5. Preserve At-Will Employment Rights.

Although the overwhelming majority of employee lawsuits involve claims of unlawful discrimination, harassment or retaliation, employers should also ensure that they do not give away the protections provided to them under the employment-at-will doctrine. Under this doctrine, employers retain the right to terminate employees at any time and for any reason not prohibited by law, with or without prior cause or notice. Employers may forfeit this right, however, by statements or conduct that give employees assurances of job security or lead them to believe that they may be terminated only for cause. Such actions may expose an employer to wrongful termination or breach of contract claims.

To ensure that this does not occur, employment applications, offer letters and employee handbooks should clearly and unmistakably state, at a minimum, that employment with the company is “at-will, meaning that either you or the Company may terminate your employment at any time and for any or no reason, with or without cause or prior notice.” Employees also should be required to acknowledge their at-will employment status by a signed writing to be maintained in their personnel files.

While even the best management practices cannot prevent every lawsuit, these simple steps will go a long way toward reducing and resolving potential claims. At the very least, incorporating these safeguards before a lawsuit arises will provide an employer with the proper tools it needs to mount a successful defense and, hopefully, an early dismissal of the case.
To ensure that your company has done everything it can to prevent employee lawsuits, have your policies, training and employment practices reviewed by employment counsel. Too many employers learn too late how easily a lawsuit could have been prevented. Being pro-active and working with experienced employment counsel will also severely reduce potential liabilities and defense expenses if a lawsuit is filed.

Keith J. Rosenblatt is a senior associate with Grotta, Glassman & Hoffman, P.C., in Roseland, New Jersey. Mr. Rosenblatt specializes in all types of employment litigation and counseling on behalf of management. He may be reached at 973-992-4800 or at rosenblattk@gghlaw.com.

Grotta, Glassman & Hoffman, P.C. devotes its practice to the exclusive representation of management in labor, employment, business immigration and employee benefits law and related litigation, with offices in New Jersey, New York and California.

For more resources on Employment Law, visit the LawInfo FAQ Center. For an employment attorney in your area, visit the Lead Counsel Attorney Directory.

The suspected thief was arrested, but fled prior to trial. Two years later, when she was finally located and re-arrested, she was working as a bookkeeper, in another state, under an assumed name. She was found guilty and sentenced to two years in state prison. Six months later she was paroled and gainfully employed as, you guessed it, a bookkeeper.

A simple, inexpensive, background check could have saved these two employers, and quite possibly the third and fourth, thousands of dollars. The first employer would have found that his prospective bookkeeper was in serious financial trouble, near bankruptcy. The second employer would have discovered the reason for her termination and serious financial problems. By the way, neither employer recovered a dime, even though the court ordered restitution.
How long would it take for your company to recover from a $130,000 loss? Would you be able to recover from such a loss? Even if your profit margin were as high as 20%, a loss like this would represent $650,000 in gross sales.

Other than helping to screen out dishonest people, why would you, as a business owner or manager, spend time and money on a pre-employment background check? A background check can help with hiring decisions by providing information you can use to select the most qualified, honest, and dependable employees. It may tell you if a candidate will “fit in with the rest of your employees. This can be critical, particularly in small operations.

How extensive a background check should be depends on the position you are trying to fill. For an entry level or line level employee, you may only want a criminal history check and previous employment verification. If the employee is driving your vehicles, a driving history is important. A credit check should be performed on all prospective employees who will be handling cash, purchasing materials and equipment, or entrusted with your customer’s property. Upper management positions should require a rather extensive investigation including, reference checks, professional certification, education verification, previous employment records, etc.

A pre-employment background check should verify the accuracy and completeness of information that applicants provide on their application, and during their interview sessions. It may identify evidence of previous problems of a select nature. Patterns of past behavior are often a reasonable predictor of future behavior. The background check may also provide evidence of positive traits to assure that the best candidate for the job is identified and hired. It is essential that we identify applicants who are not employable, or those who may be employable, but under conditions of closer supervision.

Some employers also run background checks on current employees prior to promotion to a more responsible position. For example, you may not want to expose an individual with serious financial problems to the temptation of handling large amounts of cash. A person having trouble running their private life might not be the one you want running your company.

If you are convinced that pre-employment background checks are a good idea for your organization, there are some things you should consider. First, in order to deter possible civil litigation, you should have a written policy requiring a background check on all prospective employees. This will help prevent claims of discrimination or favoritism. Second, set minimum standards for employment with your company. What will disqualify a candidate? Of course these standards may vary from position to position depending on the level of responsibility. Third, make certain applicants are aware that they will be subject to a pre-employment background, this will actually help weed out unacceptable candidates before you waste further time, effort and money on them. Fourth, unless you have the personnel and resources to perform these background checks, hire someone who has experience in interviewing and investigations.

The investigator should prepare and provide you with a written report of their findings which becomes a part of the candidates personnel record or is attached to the application of those candidates you reject.

Depending on your requirements, a background check may include any or all of the following:

* Criminal history
* Driving history
* Previous employment verification
* Credit history
* Personal references check
* Address verification
* Education verification
* Worker’s compensation report
* Professional license verification
* Interviews with neighbors, family, and
friends

While a pre-employment background check can reveal problems with substance abuse, a pre-employment drug screen should be a part of everyone’s hiring process. This can be done separately or easily incorporated into a pre-employment physical examination. Again, be certain that the medical facility you use is experienced and equipped to provide you with accurate tests and reports as well as competent staff to explain the results.

You may consider pre-employment background checks a waste of time and money, but consider the cost of hiring, training, and firing an unacceptable employee. You will spend far less in the long run by doing a little checking before you hire. Pre-employment backgrounds do not guarantee a problem free employee, however, it never hurts to hedge your bets.

About the Author

John Parker is a licensed private investigator with 26 years of local law enforcement experience and over 15 years experience in electronic security design and installation. John is a member of the American Society of Industrial Security and a lifetime member of the California Organization of Police and Sheriffs.

This story is true. The names have been changed to protect the guilty. The same story, or one similar, has played out in just about every police department in the country. Police officers are constantly under scrutiny. This is description of a common internal police investigation, start to finish.

The Scene

Officer Johnson and Officer Thompson work nightwatch, pushing a black and white around the city, cheating death, dodging bullets, and protecting the meek from oppression. Johnson, a seven-year veteran of the department, is piloting the new Crown Victoria while his partner, Thompson, with two years on the job and trying to regain the waistline he had before the academy, polishes off his fourth Krispy Kreme donut and a four dollar cup of coffee from Starbuck’s. Thompson idolizes Johnson and wants to be just like him when he grows up.

As they approach the corner of First Avenue and Main Street a shiny new Mercedes, driven by local ne’er-do-well, Barry Slime, passes between them and the curb. Barry waves as he goes by, middle finger extended.

Knowing that Slime couldn’t afford to take the bus, much less drive a well-built German automobile like this one, Johnson unleashes the awesome power of the mighty Crown Vic. With lights flashing and siren blaring, they pursue Slime through the deserted streets of the sleeping city. Even though Slime is driving a faster car, his unlicensed, unskilled driving is no match for Johnson’s training and cat-like reflexes. The police cruiser quickly catches up with the Mercedes.

The Pursuit

Slime, having trouble losing the police car, becomes increasingly reckless and eventually slams the stolen Mercedes into a tree in front of the high school. After shaking off the effect of the airbag exploding in his face, Slime opens the door and climbs out of the car as the police car comes to a smooth controlled stop behind him. Slime climbs over a fence takes off through the schoolyard like a rabbit. Johnson leaps the fence in a single bound and is hot on his trail. Thompson, packing his donuts and four thousand calorie coffee, struggles over the fence and brings up the rear.

Johnson catches up with Slime half way across the school yard and orders him to stop. Slime turns and takes a swing at Johnson and then assumes a karate pose he learned from watching Kung Fu reruns. Johnson pulls his baton as Slime attempts a roundhouse kick. Johnson strikes Slime twice on the leg and then slips the baton into a wristlock on Slime’s right arm taking him to the ground. Slime continues to struggle as Johnson places handcuffs on him.

Johnson looks up to find Thompson standing nearby; hands on his knees, trying to catch his breath and watching him take Slime into custody. Thompson helps Johnson get Slime to his feet and they walk him back to the fence just as Sergeant Limon arrives. The all knowing and very wise sergeant takes one look at the obstacle between he and the officers and not wanting to damage his aging body, walks to an opening in the fence.

The Arrest

Slime is placed in the very roomy back seat of the police car and carefully seat belted in. Slime demands to talk with the sergeant privately. Slime has several abrasions on his face and a large bruise on his right leg just above the knee. Slime tells Limon that Officer Johnson beat him with a stick and made rude comments about the marital status of his parents. Slime insists on filing a formal complaint.

After a brief stop at the local hospital, to have Slime’s injuries checked out, Officers Johnson and Thompson return to the station with their prisoner and get him tucked in for the night without further incident. Johnson writes a very complete arrest report detailing his use of force and Slimes resistance. Thompson brags to several of his fellow officers about the altercation and how his partner subdued the bad guy, embellishing the story with just a few of his own details.

After completing the mountain of paperwork necessary to ensure Slime is punished for his transgressions, Officers Johnson & Thompson are summoned to the Sergeant Limon’s office and informed of the complaint filed by Slime. They are directed to prepare written memorandums detailing what occurred during the apprehension and arrest of Mr. Slime. Sergeant Limon also orders them not to discuss the incident with each other.

Officer Johnson, knowing that he has prepared a very thorough arrest report detailing everything Sergeant Limon would need to know, merely copies his report into memo form and gives it to the Sergeant.

Officer Thompson, not wanting his partner to get in trouble because of something he might say, writes that he saw nothing, heard nothing and knows nothing. He turns in his memo to Sergeant Limon and returns to duty with his partner.

The Complaint

Sergeant Limon writes up Slime’s complaint, attaches the memos from Johnson and Thompson, and forwards the whole thing to Lieutenant Smith in Internal Affairs. Do you see what’s coming yet?

Lieutenant Smith begins his investigation by interviewing Slime. Slime tells him that Officer Johnson did not really beat him with a stick or even call him bad names. He said Johnson only hit him twice with the baton because he was trying to kick the officer. Slime said all of his facial injuries were caused by the airbag exploding when he ran into the tree.

Officer Johnson was interviewed next and his story matched Slime’s exactly. Johnson’s report was thorough and accurate. Lieutenant Smith asked Johnson where his partner was during the altercation and Johnson said he wasn’t sure because he was busy wrestling with Slime.

Officer Thompson was up next. Lieutenant Smith asked him to recount the arrest of Slime and the use of force exercised by Officer Johnson in effecting that arrest. Officer Thompson tells the lieutenant that he didn’t see Officer Johnson strike Slime at anytime because his attention was diverted by something he couldn’t remember. Thompson denied seeing any part of the actual arrest or hearing anything said by Officer Johnson to Slime. Lieutenant Smith probed further, hoping Thompson might remember something helpful, to no avail.

The Investigation

Lieutenant Smith interviewed two other officers, working at the time Slime was arrested, and both could only offer second hand information received from Officer Thompson following the arrest.

Lieutenant Smith finished his investigation and determined that Slime’s complaint was unfounded and that Officer Johnson used only force necessary to overcome Slime’s resistance. Officer Johnson was notified that he had been exonerated.

As a result of Lieutenant Smith’s investigation, he determined Officer Thompson was untruthful during his interview and his written memorandum. Officer Thompson was placed on administrative leave pending termination.

If you have read this far and you feel that Officer Thompson’s behavior was acceptable, you can stop reading, you won’t like anything I write from this point on.

The Result

Once an officer has completed his or her initial training and probation period, dishonesty, in one form or another, is the leading cause for termination. Very often the offense they are lying about is minor and would result in a slap on the wrist. They try to cover up their mistake and end up being terminated.

An officer found to be untruthful in court or an internal investigation raises serious issues regarding his or her future credibility. Defense attorneys quite often file Pitchess Motions that, with a judge’s approval, may allow them access to information contained in an officer’s personnel file. A police officer with a pattern of dishonesty is easily impeached in court and therefore not much use as a witness. If an officer cannot effectively testify in court their agency may assume they are not much use as a police officer.

Our profession is being reviewed, investigated, and scrutinized by everyone, from the media, to politicians eager to make a name for themselves. It seems you cannot pick up a newspaper today without reading about dishonest cops. I realize the media has a tendency to slant stories about police officers toward the negative, which is why we must never allow our integrity to be compromised.

If you are ever the subject of an investigation, listen to your attorney, and keep in mind that you may have to tell the same story several times. The truth is a whole lot easier to remember.

About the Author

John Parker is a licensed private investigator with 26 years of local law enforcement experience and over 15 years experience in electronic security design and installation. John is a member of the American Society of Industrial Security and a lifetime member of the California Organization of Police and Sheriffs.

The following information explains the different pay arrangements attorneys use most often. Most state bar associations recommend that attorney fees should be confirmed in a written agreement. Most states have developed procedures for resolving disputes that arise between the client and the attorney over attorney fees.

Different Types of Fees: Contingency Fees

A contingency fee represents a certain percentage of the recovery in the client’s case. Contingency fees cannot be used in divorce cases, child custody cases and criminal cases. Many attorneys will take certain types of civil suits, such as personal injury cases on a contingency fee basis, where they do not charge a fee unless they recover money for the client. There are additional legal costs involved in litigation. Ordinarily the client repays those costs even if there is no monetary recovery.

Contingency fee percentages vary from case to case. Common contingent fees range from 20 to 40 percent of the client’s recovery. Almost every state limits contingent fees for personal injury and workers’ compensation cases. The law does not place a limit on contingency fee percentages for other cases, in which the figure is negotiable between the client and attorney. Contingency fee agreements must be in writing.

Flat Fee

A flat fee is a dollar amount that the attorney and the client agree on before the attorney begins work. Many attorneys favor the flat fee because it is a simple transaction paid up front. The attorney identifies an amount of work that the case will require and calculates a
reasonable fee based on the time and effort involved. If the attorney spends less time on the case than anticipated, he may keep the excess fee amount, unless he and client agree otherwise. However, if the attorney charges a flat fee and the case requires more time and effort than originally anticipated, the attorney may not later demand more
money.

Hourly Rate

An hourly rate is a predetermined pay for the attorney’s work. The attorney and client may agree that these fees be paid periodically or in one lump sum at the end of the case. The time that an attorney charges for legal work is called billable time or billable hours.
Hourly rates vary according to the attorney’s expertise and experience. Some critics have argued that hourly rates discourage quick work and expedited resolutions. Before agreeing to payment of an hourly rate, prospective clients should ask for a written estimate
of the number of billable hours that the attorney anticipates will be necessary for the case.

Retainer

A retainer is either a continuing flat fee or an advance on the fee owed for the attorney’s services. Corporations and wealthy individuals usually use a continuing flat fee retainer. In return for a regular payment, the attorney agrees to be available to handle the client’s
day-to-day legal affairs. Most individuals do not have enough legal concerns to keep an attorney on retainer.

The term retainer also refers to an initial fee paid by the client. Attorneys who charge an hourly rate usually use retainers, but some attorneys add an initial retainer to a contingent fee.

Pro Bono

Most attorneys will periodically take cases on a “pro bono” or “no fee” basis, particularly where the case is of interest to the attorney, and the issue involved in the case is significant to the public interest. Attorneys do receive many requests for pro bono work, and can at best
take only a few of those cases.

(”Pro bono” is an abbreviation for “pro bono publico,” meaning “for the public good.” While it is customary for attorneys to do their “pro bono” work without charging a fee to the client, “pro bono” work may nevertheless result in fees, for example if the representation allows the attorney to ask for attorney fees as part of the judgment.)

Spring has sprung and motorcycle riding season is upon us, but before you dust off the saddle and head out on the highway, be sure to give your insurance a tune-up to make sure you’re properly covered in case some “cager” isn’t used to looking out for motorcycles yet.

Nobody likes to think about insurance, or about having an accident and needing it. But, bike or car, you’ve got to be prepared with the right information, legal advice, and above all, the right insurance.

“But I’ve got full coverage,” you might say. Well chances are that you don’t, not unless you have high limits of uninsured/underinsured motorist, and the right kind and amounts of other important coverages!

In my law practice I’ve had many clients who thought they had “Full Coverage” insurance, but that doesn’t necessarily mean that you, your passenger(s), your property or that of the other party’s are always covered, or fully covered. If that sounds complicated, well so is insurance, and that?s why you should always read your policy and know what you?re covered for.

For example, you can tell your insurance agent that you want Full Coverage insurance, but the policy you wind up with may not include Uninsured/Underinsured Motorist coverage, arguably the most important coverage, because in Ohio they are not required to even offer it to you. Also, while you may believe that your bike is fully covered, you may discover some day to your misfortune that it was only insured for market value (Blue Book), or that your add-ons and custom accessories are not covered.

So go get your policy and let?s take a look at the various coverages that you need to be concerned with. If you have any questions, or want to change your policy after you read this, you should contact your agent or insurance provider.

Uninsured/Underinsured Motorist (UM/UIM): By far this is THE MOST IMPORTANT COVERAGE you need, bike, truck, or car. Buy the highest limits you can. This protects you, typically your passenger, and even relatives in your household for injuries in any UM/UIM wreck for medicals, pain and suffering, lost wages, and future losses. You still need a lawyer to wring the money out of your own company, but at least there will be something there to get at, if you have high limits. UM/UIM is used when it’s someone else’s fault, and they either have no insurance, or not enough insurance to cover your damages. Ohio only requires “12.5-25″, the lowest in the country, which covers bodily injury up to $12,500 per person/$25,000 per accident; not enough in most bike accidents. For example, the average hospital stay for a serious leg fracture is around $50,000.

WHAT TO BUY: As much UM as you can. Not less than $100,000 per person, more if you can. It is not too expensive. One way to pay for more UM is to raise the deductibles (your “co-pay”) in your collision and comprehensive policies.

Liability: Also known as “BI” (bodily injury). Your BI pays for someone else’s injuries, not yours, only if an accident is your fault. Likewise the other guy’s BI pays you if it’s his fault. This is for all damages, present and future, including pain and suffering, except for property damage. Ohio only requires “12.5-25″, or up to $12,500 coverage for each person’s claim per accident, and only $25,000 for all claimants combined for each accident. That’s very inadequate.

WHAT TO BUY: Get at least “50-100″, preferably “100-300″ or even more. If you hurt someone else on a bike, it is likely to be your passenger. You want that person to get a decent monetary recovery if there’s a serious injury. And whoever is hurt, you don’t want their lawyer to come after you personally and take your property, just because your BI insurance limits were too low.

Property Damage (P/D): Your PD pays for damage you do to someone else’s property. Ohio requires a minimum of $7,500. Buying more doesn’t hurt, since most new cars and bikes cost more than that these days. This does not cover your own bike. That’s under either Collision, Comprehensive, or UM/PD.

Uninsured Motorist for Property Damage (UM/PD): It’s a good buy, and usually fairly cheap, but if you already have collision coverage, it’s probably not necessary. As the name implies, UM/PD covers damage to your bike if it’s the other driver’s fault and that driver has no insurance. UM/PD may also pay for your leathers and helmet damage, while collision ordinarily won’t. Also, UM/PD typically has no deductible.

Medical Payments (MedPay): is personal injury protection, but may not provide a lot of protection because of the cost and the fact that most companies only offer small amounts (typically only up to $500 -1,000, though your carrier may offer higher limits). MedPay is a stopgap coverage that pays whatever your health insurer doesn?t (up to the purchased limit), which may be a lot.

Collision: Just covers your bike, minus a deductible, for damage from a crash of any sort, regardless of fault. Not required, except by finance companies to protect their loan if you finance a new or used vehicle. It’s not cheap, but the higher your deductible, the cheaper the premiums.

Comprehensive: Also just covers the bike, but for other losses, such as fire and theft. Not required by law, but usually worthwhile to add. Again, most finance companies require “Comp/Collision” coverage. Higher deductibles also get you cheaper premiums.

Accessories: Most insurers will offer additional coverage for your accessories, but such insurance is not intended to cover chrome replacement parts or custom paint jobs, but will cover add-ons such as saddlebags, tool kits and even your helmet and leathers. Premiums are usually based on a percentage of the value you wish to insure your accessories for.

Premiums: Once you figure out what types of coverage you want for your bike or car, be sure to compare rates with other carriers. They can and do vary widely, and it pays to shop around. Call agents, including your own, and some independent brokers.

About the Attorney: Ralph Buss graduated from Cleveland State Marshall Law School while working as a developmental engineer for the Lincoln Electric Company in Cleveland, Ohio. He was admitted to the practice of law in 1968. He continued designing welding products for the Lincoln Electric Company until he resigned in 1977 to join a law firm as a full-time attorney.

The verdicts in the Michael Jackson case, and the O.J. Simpson case before it, point out, once again, a fundamental failure in the media’s coverage of criminal cases. A criminal jury trial is not like a sporting event where one counts the “points” from each side to see who wins or loses. Yet, the press treats each trial as if that were the case.

Criminal jury trials are frequently won or lost because of the importance of one or more factors that the jury itself finds important, not issues the media feels are important. Facts should be analyzed for their importance or ability to convince based on how each juror will most likely look at them, not on how each juror should look at them. Understand that one important factor can outweigh all the arguments presented by the other side.

The possession of hard-core child pornography, or the lack of it, might be the single determining factor in a case like this. Or, Michael Jackson’s perceived peculiarity may have been the determining factor. One thing is for sure: you will rarely get the real reasons for a verdict from talking with the jurors after the case. Although this is not always true, frequently an experienced trial attorney must read between the lines of what the jurors say to determine their true motivation.

Also, the most important part of any jury trial is the part that is almost entirely ignored by the media: who are the actual people selected as that jury and what are their personal backgrounds, biases or interests? How did they actually answer questions asked during the jury selection process? What are their personal beliefs?

Imagine, running a jury trial is a lot like presenting a Broadway play and wondering, nervously, what kind of reviews it will receive. Your reviews will be a lot different if you get to select your critics, than if you just take your chances with whomever you get. For instance, who would pick critics who only like musicals, if what you are putting on is serious drama? Or what playwright would select a critic that already showed a dislike of the play’s leading actor?

An experienced trial attorney, such as there was in the Michael Jackson case, has learned the hard way what works and what does not work in convincing trial jurors. The defense attorney cannot rely on what should influence people, but must learn from experience what actually does influence people. You only get this kind of knowledge from hands-on experience – and a lot of it.

About the Attorney

John D. Cahners, a former senior prosecutor with the Santa Clara County District Attorney’s Office, has been sucessfully defending clients with a wide variety of cases from DUI to homicide.

A California Bankruptcy Court has opined that willful copyright infringement may be so egregious as to give rise to a claim that may be excepted from discharge in a bankruptcy case. This is the first opinion speaking directly to the dischargeability of copyright infringement liability after a landmark 1998 Supreme Court case which set a significant standard for “willful and malicious” injuries for discharge purposes.

In a detailed opinion by the Honorable Leslie Tchaikovsky of the United States Bankruptcy Court for the Northern District of California in In re Chan, 02-44485, Adv. No. 02-7230 , ___ B.R. ___, 2005 WL 1133858, the Court granted summary judgment for Plaintiffs Atlantic Recording et al. against a defendant who incurred $136 million of liability for willful copyright infringement, then attempted to discharge that liability in a Chapter 7 bankruptcy case. Judge Tchaikovsky ruled that the copyright infringement claims survive the debtor’s bankruptcy discharge.

Chan is the first opinion after the Supreme Court’s decision in Kawaauhau v. Geiger, 523 U.S. 527 (1998) to speak to nondischargeability of copyright infringement claims under 11 USC Section 523(a)(6). Geiger was a medical malpractice case in which the Supreme Court investigated whether negligent or reckless acts rise to the level of “willful” conduct for purposes of Section 523(a)(6). Geiger, 523 U.S. at 61. In sum, the Supreme Court ruled that, to except a claim from discharge, “the actor [must] intend ‘the consequences of an act,’ not simply ‘the act itself.’” Id. The Court’s holding was limited to “debts arising from recklessly or negligently inflicted injuries.” Id., 523 U.S. at 64.

Prior to Geiger, Bankruptcy Courts had long evinced their intent that willful copyright infringement damages be treated seriously for bankruptcy discharge purposes. Gordon v. Weir, 111 F. Supp. 117 (E.D. Mich. 1953); In re Massier, 51 B.R. 229, 231 (Bankr. D. Colo. 1985); Dolman v. Agee, 157 F.3d 708, 715 (9th Cir. 1998) (defendant with knowledge that his conduct constituted copyright infringement found to have acted willfully); A&M Records, Inc. v. General Audio Video Cassettes, Inc., 948 F. Supp. 1449, 1457 (C.D. Cal. 1996) (“a defendant acts willfully if he or she knew, [or] had reason to know, . . . the fact that his or her conduct constituted copyright infringement”).

Thus, it was held that where a debtor committed a knowing violation of federal copyright law, or where there was infringement without “just cause or excuse” that necessarily caused harm, such infringement was nondischargeable under 11 U.S.C. § 523(a)(6). Matter of Elms, 112 B.R. 148 (Bankr. E.D. La. 1990); In re Gabaldon, 55 B.R. 431 (Bankr. D.N.Mex. 1985). There was some question in the intellectual rights community, however, whether these cases remained vital after the “intent” standard enunciated in Geiger.

The Chan opinion confirms that injuries to property consisting of copyright interests may be excepted from the bankruptcy discharge. Judge Tchaikovsky further recognized that the debtor’s malice and intent for discharge purposes may be inferred from the surrounding circumstances and from the debtor’s conduct. For the owners of intellectual property rights, the opinion will doubtless be a valuable tool in negotiating with or pursuing infringers who might otherwise have utilized, or threatened to utilize, bankruptcy to evade liability.

A recent class action settlement will shorten waiting times for green card applications and result in a significant victory for plaintiffs. The court in the case of Ngwanyiav v. Gonzales is currently waiting for the two parties to officially accept the settlement.

The action was brought by non-US citizens who had been granted asylum by the Immigration and Naturalization Service (“INS”), now known as the U.S. Citizenship and Immigration Services (“CIS”). The approval of the settlement of the lawsuit would create two very significant benefits to aslyees: shortening the waiting time for conferring immigration benefits to immediate relatives by petition and shorting the waiting time to see loved ones in the home country.

As background information, the plaintiffs applied for “adjustment of status” (aka green card applications) after they were granted asylum by an asylum officer or by an immigration judge. An adjustment application or green card application is filed to become a lawful permanent resident of the United States without having to leave the United States. There is a limit to the number of green cards that may be issued each year to those granted asylum. The applicable annual numerical limitation on issuance of green cards to aslyees is 10,000. The number of applicants each year far exceeds the availability of visas, so the overflow results in waits of many years.

Plaintiffs complained that INS had not used all 10,000 numbers they were allowed to use. The failure contributes to the years of waiting by aslyees to adjust status. In addition to anxieties flowing from “hurry up and wait,” an asylee waiting for adjustment of status cannot confer immigration benefits on parents or, spouses acquired after asylum was granted and unmarried sons and daughters.

They must wait for approval of the adjustment application. Under normal circumstances, adult U.S. citizens have legal status to petition CIS to immigrate parents, spouses, and son and daughters. Aslyees granted adjustment or lawful permanent residents have legal status to petition CIS to immigrate their spouses and unmarried sons and daughters.

Adult children under U.S. immigration laws are referred to as sons and daughters. A complete discussion of sponsorship of relatives is beyond the scope of this article, but suffice to say, asylees do not have the legal authority to sponsor parents, after-acquired spouses and sons and daughters.

Another reason the Ngwanyia v. Gonzales class action is important relates to international travel. Asylees may for one reason or another find themselves with the need to travel abroad during the many years that they are waiting for their immigration status to be normalized. Aslyees may travel, of course and they are issued refugee travel documents. Any perceived stigma attached to the refugee status would be avoided by adjustment of status and the related issuance of the green card.

But even if the asylee is not phased by being classified refugee during the time that the adjustment application is pending, the asylee wanting to see relatives in the home country must meet them in a third country. Asylees traveling to the home country before his or her adjustment is granted risks being denied readmission as a refugee or ultimately being denied adjustment of status based on the asylee status.

Asylees currently pending adjustment of status should contact an immigration attorney to ensure that the waiting period is not unnecessarily delayed. More information on the class action suit may be obtained from this link: http://uscis.gov/graphics/lawsregs/NGWANYIA_5_10_05.pdf